Arbitration decisions

If you have been discriminated
against because you have asked your employer to comply with the
provisions of the Occupational Health and Safety (OHS)
Act, you can request an arbitration to resolve the matter free
of charge. An arbitration is a dispute resolution process provided
by the Act and administered by WorkSafeNB.

OVERVIEW

The complaint process
Let's suppose you have exercised your right to refuse dangerous
work, and your employer has responded by suspending you. If you
want to have the suspension revoked, you have one year from the
date of the incident to initiate an arbitration. To do so, you must
contact WorkSafeNB and complete a complaint form outlining the
dispute.

For example, if an employee were to tell their employer that a
machine needs to be guarded and the employer punishes the employee
for demanding this by suspending the employee for a day, that
employee can complain to WorkSafeNB, and an arbitrator will be
appointed to resolve the matter.

How do I complain to WorkSafeNB?
You must complete a complaint form (Form 1) that gives
WorkSafeNB details of what occurred. You can get this form by
speaking with a health and safety officer or calling WorkSafeNB at
1 800 222-9775.

How long do I have to file my complaint?
You must file a complaint within one year of the incident.

What is an arbitrator?
Once your complaint had been received, an independent arbitrator
is appointed from a WorkSafeNB board-approved list. The arbitrator
is not an employee of WorkSafeNB, but a qualified lawyer with
experience in labour law and an understanding of workplace
issues.

Arbitration hearings
Once an arbitrator has been appointed, a hearing will be
scheduled. It can be conducted in either official language, and all
possible measures are taken to hold it in your city or town. The
hearing allows the arbitrator to gather the evidence they need to
make a decision in the dispute. It is a lot like a courtroom trial,
but much more informal. Although it is not necessary, you or your
employer may choose to be represented by a lawyer at the hearing.
This is a voluntary cost that is not covered by WorkSafeNB or by
legal aid, and must be paid for by the individual doing the
hiring.

The hearing follows a straightforward format. As the complainant,
you tell the arbitrator your side of the dispute first. Your
presentation should outline your attempt to enforce the provisions
of the OHS Act, and how you were discriminated against as
a result. You may present witnesses to help illustrate your case.
If your witness is unwilling to assist you, the arbitrator can
compel the individual to attend and give evidence. If this is the
case in your dispute, you should contact the arbitrator, who will
issue a summons to the witness in question.

A final component of your presentation should be a compensation
request, should the arbitrator find in your favour. The OHS
Act empowers the arbitrator to order one or more of the
following actions on your behalf:

The employer or union must stop the discriminatory
action.

The employer must reinstate the employee under the same terms
and conditions (including pay and benefits) as before the
discriminatory action.

The employer must pay the employee any wages that were lost
because of the discriminatory action.

The employer must remove from the employee's or member's
file/record any reference to the conduct or discriminatory
action.

(If the list above doesn't reflect the kind of compensation you
feel you are entitled to, then you should consider consulting a
lawyer to determine if another forum for your case would be more
appropriate.)

Once your presentation is complete, the arbitrator may ask you
questions. The person representing the other side of your dispute
will also have an opportunity to do the same.

Next, the other side will present their case. As before, the
arbitrator may ask questions, and you will have an opportunity to
do so as well.

In closing, the arbitrator may ask you to make a final
presentation to sum up your case. Use this opportunity to quickly
outline your story, and highlight the proof you have offered.

The decision
The arbitration process may take some time. The arbitrator must
take into account the rights of both parties, which means allowing
both sides time to properly prepare their cases. While both
WorkSafeNB and the arbitrator will try to resolve the matter as
quickly as possible, there can be significant time between the
alleged discriminatory action and the final resolution.

Once a decision has been reached, you will be immediately
notified. If you would like a clarification or explanation of the
decision, you can request one within seven days of the notification
date by contacting WorkSafeNB. If you disagree with the decision,
or any order made as a result of it, you have the right to appeal
it within 15 days of the notification date. To do so, you must make
an application to the Court of Queen's Bench.

If the arbitrator has made a decision in your favour and the
opposing party will not comply with the orders given, you may file
the decision with the court. It then becomes enforceable as a court
order. WorkSafeNB may be able to help with this step.

Arbitration decisions
When an arbitrator is appointed under section 25 of the OHS
Act, that arbitrator has all the authority granted under that
Act and the Industrial Relations Act. Because of
this authority, the arbitrator is legally recognized as having
'quasi-judicial' authority, which simply means they have very
similar authority to that of a judge. Likewise, decisions issued by
an arbitrator have similar weight to a decision by a judge.

In Canada, the openness and accessibility of the justice system is
critical to public confidence. Justice must not only be done, but
must be seen to be done. This is achieved by having all courtrooms
and hearings open to the public, unless there are serious and
overwhelming reasons for the court to be closed. The decisions
rendered in those courts and hearings are also available to the
public and those decisions are named using the names of the people
involved in the case. In this way, the public can trust decisions
being made and rely on them for guidance in similar cases.

Arbitrators appointed under the OHS Act are governed by
the lawful requirements for openness and by the principles of
natural justice and procedural fairness. Arbitrators follow these
practices by writing and releasing arbitration decisions with the
names of the parties attached.

These practices are not limited to arbitration decisions under the
OHS Act, but are followed by provincial and federal
courts, including the Supreme Court of Canada, and by other
quasi-judicial tribunals in the province such as the Labour and
Employment Board and the Human Rights Tribunal. These practices are
also consistent with Canadian Judicial Council guidelines, as well
as the protocols adopted by the Heads of Federal Administrative
Tribunals.

More information
For more information on the arbitration process, please contact
WorkSafeNB toll-free at 1 800 222-9775.

Please note: Arbitration decisions are posted only in the
language in which they were written.

Archived arbitration decisions This content is being revised and is currently
unavailable. Please check back.